The Agence France Press has a story, based on a forthcoming piece by Seymour Hersch in the New Yorker, that offers some ominous hints about potential forthcoming Bush actions, election or no election. Excerpts follow:

Seymour Hersh, writing in an article for the November 27 issue of the magazine The New Yorker released in advance, reported on whether the administration of Republican President George W. Bush was more, or less, inclined to attack Iran after Democrats won control of Congress last week.

A month before the November 7 legislative elections, Hersh wrote, Vice President Dick Cheney attended a national-security discussion that touched on the impact of Democratic victory in both chambers on Iran policy.

"If the Democrats won on November 7th, the vice president said, that victory would not stop the administration from pursuing a military option with Iran," Hersh wrote, citing a source familiar with the discussion.

Cheney said the White House would circumvent any legislative restrictions "and thus stop Congress from getting in its way," he said.

[Another major part of the story is that the CIA "has found no firm evidence of a secret drive by Iran to develop nuclear weapons."]

A current senior intelligence official confirmed the existence of the CIA analysis and said the White House had been hostile to it, he wrote.

Cheney and his aides had discounted the assessment, the official said.

"They're not looking for a smoking gun," the official was quoted as saying, referring to specific intelligence about Iranian nuclear planning.

"They're looking for the degree of comfort level they think they need to accomplish the mission."

On Wednesday, Israel's outgoing US ambassador Danny Ayalon said in an interview that Bush would not hesitate to use force against Iran to halt its nuclear program if other options failed.

"US President George W. Bush will not hesitate to use force against Iran in order to halt its nuclear program," Ayalon told the Maariv daily.

**************************************

So the question is this: Does "democracy" entail that an incompetent President and a demented Vice-President should be able to lead the country into another absolutely disastrous war? Is it really better to run the risks that Hersch describes than to have a procedure by which their tenure in office could be terminated with dispatch? Perhaps we would have been better off sticking with King George III than revolting in the name of something called "consent of the governed," especially with regard to going to war. "Don't Worry, Be Happy"?

Right of the bat (and before reading the piece): I remember Hersch writing exactly the same piece about a year ago. Bush and Cheney can say what they want but the US does not have the capacity to start an all out war with Iran at this moment. Iraq is a real quagmire. Since Bush decided not to engage Syria and Iran in serious discussions the only way to make sure they do what the US wants is to make clear that the military option is still on the table.

The problem is not the president (though he is a problem), the problem is a two party congress. The only way Cheney and Bush could go around Congress is if they let them. It is not enough to have an incompetent president to run amok, you need an incompetent complacent congress as well.

As Anne's citations suggest, Hersh has been on the alarmist side as regards Iran. It's difficult to know whether his sources are biased, or whether we have indeed been teetering on the brink for some time.

That said, there's no reason to doubt that Cheney would welcome attacks on Iran. What's scarier is that leading Dems may feel the same way:

The Bush Administration, if it does take military action against Iran, would have support from Democrats as well as Republicans. Senators Hillary Clinton, of New York, and Evan Bayh, of Indiana, who are potential Democratic Presidential candidates, have warned that Iran cannot be permitted to build a bomb and that—as Clinton said earlier this year—“we cannot take any option off the table.” Howard Dean, the chairman of the Democratic National Committee, has also endorsed this view.

What better way for Hillary to show her defense cred than by embracing strikes on Iran?

@sandy levinson: Just a final procedural thing before I log out (six hours time difference and all): I know this is your blog but wouldn't it be more useful to actually respond in the thread than starting a new one each time you want to add something new?

Now the comments will be dispersed over three topics. This dillutes your point. One of the things I learned in law school is to focus my arguments. A judge hate to have to find your arguments from all over your briefs and production. I hate to scroll until my finger gets numb, because your post are all over the place.

So pass a law making it clear that Bush is not authorized to start a war with Iran. And then impeach him if he does it anyway. Congress is not without ways of disciplining the Executive, they're just disinclined to utilize them.

1) This is a Sy Hersh piece, so I wouldn't get too worried about much of anything he says. However, that being said...

2) Does anyone here honestly think that the Iranians are not sprinting flat out to get the bomb? The UN just found more enriched plutonium in one of their facilities. As one Iranian scientist just observed on the news the other night, Iran has no facilities to generate nuclear energy, so why are they developing "fuel" for nuclear energy?

3) Does anyone here honestly think that a regime which regularly talks about wiping other nations off the Earth and provides weapons to terror groups to attack other nations should be allowed to have nuclear weapons?

4) Does anyone here honestly think that diplomacy is going to stop the Iranians from getting the bomb to carry out their threats?

To oversimplify, your basic argument spread over these posts is that the Presidency is not sufficiently democratic and as an institutional matter, not sufficiently sensitive to the opinions of the electorate. Bush is just an egregious example of how wrong are system can go because of these flaws in our Constitutional structure.

Well, okay.

But, you also have you argument about how the Senate is insufficiently democractic (from your argument about the overrepresentation of small states).

So, even if we take your Congressional vote of no-confidence, the Senate still must be reformed before our three branches become "functional" in your opinion.

Well, why the heck should we draw the line where you want it drawn? Maybe there is some good from having a Presidency that is somewhat seperated from the pressures of ever changing opinion. If there are not sufficient advantages, why have him subject to no confidence from Congress? Why not have direct democracy? Obviously, at some point you think the political arena should be seperated from the changing whims of the masses. Surely, you recognize some advantages beyond the mundane practical considerations, e.g. there is no way the average person could research all the bills that come through Congress plus maintaining their own lives.

When I argue that the there should be some seperation between the politicians and their sensitivity to the changing moods of the country, I don't mean this as support for total seperation, but obviously there is line drawing. It is very difficult for me to see how your attempt can really (A) solve the current problems. And even if (A) can be accomplished, how do you not (B) not create/exacerbate other problems.

IMO, the reason to not have a system that includes Congressional no-confidence votes is institutional seperation. The three branches do have significant "checking" functions. But including a no-confidence system would be the first real method under which Congress could force the President to change behavior. The President is the elected representative of the People, as well as Congressmen are. None of the three branches are directly subject to political control by another.

Yes, judges are appointed. But, once appointed, they are their for life (except for crimes that allow for impeachment). Congressman cannot be removed by the executive. Only through prosecution by the executive branch for crimes in a court of law under the judiciary, can the other two branches even indirectly bring about a removal of a Congressman.

What Sandy suggests destroys this fundamental distinction. For the first time, political control of one branch over another is specifally legitimized. Our current system only allows each branch indirect influence over the others. And removal is only for criminal behavior. For the first time, you have political disapproval codified as a method for controlling/removing individuals from another branch.

Anne raises an procedural objection which deserves answer: Generally, I try to reply "on thread" if the reply is relatively short and doesn't raise potentially new issues. If the reply goes on a while, I think it better to post it as part of my general contributions (assuming they are such) to Balkinization. But I can understand her frustration.

I have, incidentally, edited my piece since its original publication to include the hyperlink to the Hersh piece. I also agree with Anne that "the US does not have the capacity to start an all out war with Iran at this moment." That being said, it is possible (though I conffess I find it almost literally incredible) that the Cheney-Bush Administration might still be tempted by a bombing strategy that would ostensibly not require the commitment of ground troops. I presume we have more than enough "capacity" to bomb lots of sites. One might think that the Lebanon fiasco might prove illuminating with regard to a bombing-only strategy, but one never knows. (Incidentally, is there any doubt that Israel, even if it had good reasons to retaliate after the kidnapping of its soldiers, was acting with the approval and in some sense as the agent of the US?)

I'm not sure what it means to say that "the only way Cheney and Bush could go around Congres is if they let them." If the commander--in-chief orders an attack, I presume that the military would obey those orders, whatever their skepticism about their cogency.

I also agree that there will be some temptation for White House-aspiring senators to show their toughness by endorsing military action. I do wonder, though, if any of them would dare vote for a 2002-like blank check to George W. Bush and his minions.

Brett and humblelawstudent both suggest passing a law saying that Bush is not authorized to start a war with Iran or, perhaps more tellingly, spending any federal funds on such a war. I don't think the former would work, because I presume that this is just the kind of law that he would view as unconstitutionally tying his hands. Incidentally, we arguably have such a law, called the War Powers Act, and every president, Democratic and Republican, has basically rejected its constitutionality. A funding cutoff probably would work, save for the little detail that Bush would certainly veto any such bill, assuming it could get past a Senate filibuster.

I agree with humblelawstudent that I want to modify--I would resist saying "destroy"--the present separation of powers system, because I do believe that it puts the country too much at risk from an incompetent--or spectacularly wrong-headed--president.

I conclude by repeating two earlier observations: 1) Not a single person, so far, has said that he/she feels better knowing that George W. Bush will inhabit the White House for 26 more months. 2) Not a single person so far has said that a country designing a constitution in 2006 would be well advised to copy the American version of separated powers and the fixed-term presidency. Anne suggests that one could achieve the no-confidence option through exertion of political will by Congress. I personally doubt it, but that may be beside the point, in a way. What is vitally needed, I continue to believe, is a national conversation on whether we are now, or will in the future be, well served by maintaining the 1787 status quo with regard to the president's term of office.

The problem is not the President, not the two party Congress, but that this county is just too big. The scale doesn't work. Maybe it's just me, off here in Maine, one of the remote corners the various anti-Federalists wrote about as being ungovernable from the center.

We've outgrown the Constitution. It's full of garbage - like the Commerce Clause - that says I cannot stop someone burning their trash upwind of me because that would interfere with their profit. I get the lead, arsenic, PCBs and dioxins; they get the profit. The Constitution was written for an effectively unlimited natural resource base and effectively unlimited waste sinks. That is no more.

The first 10 Amendments don't apply, but corporations are still immortal like the gods.

The Constitution has been subverted, as the anti-Federalists pointed out, and the states are no longer anything but administrative districts. Our governors know the Guard is being misused but because of the purse strings do nothing.But what Governor has the cohones to disband his state's Guard, let alone demote the "leaders" to the front lines in Iraq? Authoritarianism. The Leader is always right.

The Soviet Union collapsed when its energy systems failed. That's what Dick and Dubya are trying to avoid.

As to your first observation, that is hardly sufficient reason to change the Constitution and our seperation of powers arrangement. I'm not trying to be snarky, but if we started basing our Constitutional system on what "feels better" at one relatively short period of a Presidency or two, then, well ... I'll just say that is it very troubling that you consider it a sufficient basis for the reworking of our system of governemnt.

Your proposal shifts the power from the people to Congress. Like I mentioned before, for the first time you had would have actual codification of a method of direct political control by one branch over another - and fundamentally undercut one of the primary differences between Parliamentary and Presidential systems.

I'd be interested thoughts on the effect of this proposal assuming it had been in force since our founding. Counterfactuals are problematic, but I wonder what insight they would provide.

So the question is this: Does "democracy" entail that an incompetent President and a demented Vice-President should be able to lead the country into another absolutely disastrous war?

Normally I avoid the rewrite-the-Constitution argument as whistling in the dark, but FBOW, I'll get my feet wet:

*If* the President were to attack Iran without Congressional authorization, he would be impeachable.

The failure of Congress to actually impeach him isn't relevant, as that pretty much would go for any alternative; Parliament could decline to vote "no confidence" in Tony Blair were he to pull something similar.

So the fault lies not in the fixed stars of our Constitutional constellation, but in ourselves. Which is why, as John Adams lamented, there has been no advance in political science.

(5) Does anyone honestly think that bombing raids alone, without ground troops, will (a) permanently stop Iran from getting the Bomb or (b) outweigh in benefits the political costs?

I don't know the answer to that question. As a former army infantry grunt, I generally have more faith in boots on the ground than I do air strikes. However, I would need to see the intelligence we have before I could rule out air strikes. We appear to know where their nuclear facilities are located. If that is the case, our air power can take them out.

Will this permanently stop Iran from getting the bomb? Probably not without regime change. As the NYT recently admitted before the election, accidentally disclosed Iraqi documents revealed that Iraq was well advanced in nuclear technology and was probably a year away from getting the bomb as soon as it obtained the supplies. The only option which took Iraq out of the nuclear weapon business was regime change.

As for political fallout, perhaps those who would create that fallout need to seriously consider the implications of a terrorist theocracy, which is seriously expecting the imminent advent of the Shia version of the rapture, to gain the most horrible of WMD.

If the EU, Russia and China took this seriously, Iran could be badly hurt through economic sanctions and we might be able to stop their nuclear program through means short of war. However, they are not. Iran is literally taunting them now.

Life rarely provides neat and easy answers. Sometimes your alternatives are bad and worse without much certainty as to which is worse.

Thank you for your long response Sandy. At least one factual incorrectness: I'm a man. Over here Anne can be a man's name as well.

I agree with Humblelawstudent that introducing a vote of non-confidence means letting go of your strict separation of powers. However I don't mind letting that go. In Europe this no confidence rule seems to be working pretty good. Parliaments hardly use sopeana powers over here, because if a Secretary does not provide the information, there can be no confidence.

What I meant by saying is "the only way Cheney and Bush could go around Congres is if they let them." is a point several other commenters are making as well. Congress can make a law prohibiting a war in Iran, denying funds to such war, enforce the the war powers acts or impeach Bush. They won't but they can prohibit Bush to attack Iran. Of course there is the possibility that the president would break such a rule, but if we let go of the presumption that the president executes the laws passed by congress than I don't see a point in this whole discussion: If a president no matter what, will do what he wants there are no rules stopping him.

For your second point: I am saying that there is a choice between two systems. Either you have a system with a vote of no confidence in a prime minister and his cabinet, or you have a system with a president with his own mandate. I don't think the choice for a presidential system is a bad one just because I really don't like Bush.

Sandy writes, w/r/t to the suggestion that Congress could enact a law forbidding the President from starting a war with Iran or prohibiting the expenditure of any funds on such a war:

"I don't think the former would work, because I presume that this is just the kind of law that he would view as unconstitutionally tying his hands. Incidentally, we arguably have such a law, called the War Powers Act, and every president, Democratic and Republican, has basically rejected its constitutionality. A funding cutoff probably would work, save for the little detail that Bush would certainly veto any such bill, assuming it could get past a Senate filibuster."

Sandy's second point is the operative one: Bush would veto any such bill, and I assume there are not 2/3 of each chamber ready to override. That's why there won't be a (domestic) law prohibiting the Iran strike. However, if such a law were passed over his veto, I can't imagine him ignoring it, even though he would (wrongly) *assert* that it violates his CIC authority.

To clarify, however:

1. The War Powers Resolution itself would not prevent the Iranian action. It would require a cessation of the use of armed forces 60 days after the conflict begins (which can be extended to 92 days under some circumstances). I doubt the Bush Administration is planning anything that would last more than three months -- but if the conflict did last that long, *then* the WPR would kick in, assuming Congress has done nothing in the interim.

2. It is simply a myth that "every president, Democratic and Republican, has basically rejected [the] constitutionality [of the WPR]." Nixon did -- and his veto was overridden. And this President has -- or OLC, per John Yoo, did, anyway. But Carter and Carter's OLC specifically concluded that the 60-day limit was constitutional -- an Executive branch determination that was not overturned until John Yoo did so sub silentio on 9/25/01. And no other President while in office (or OLC) has spoken directly to the question (although Reagan did hint that he thought it was constitutionally dubious).

After Chadha, some Administrations have assumed that section 5(c) of the WPR -- which requires troop withdrawal upon a concurrent resolution of Congress -- violates the presentment requirement of Article I, but that's a different question, and one that is unlikely to arise.

3. Even though there's no "law" against it, a strike against Iran without legislative approval might very well be unconstitutional because it's the sort of action for which Article I requires congressional preapproval. A difficult and famously unresolved question. I agree that this would *not* stop Bush from acting, however, because he is of the view that the President has the power to start wars based on a very broad view of what constitutes a "defensive" action.

4. The strike might well violate our treaty obligations under the U.N. Charter, and/or the laws of war. I don't know enough about the facts to say for sure. Bush would (unlawfully) ignore the laws of war, I suspect. And he would probably come up with some argument, however implausible, that such a strike does not violate the U.N. Charter -- although that would surely cause many sleepless nights over in the State Department.

The problem is that prof Levinsons is mixing up practical and theoretical arguments. He argues that a reason to change the constitution is because the current congress cannot stop Bush from attacking Iran.

Practically it is true that the commander in chief cannot be stopped in advance. If he insists on attacking it is his call. But this is not an argument for changing the constitution because every change in the constitution short of taking away the position of commander in chief from the president will fail in practice to prevent a president from attacking anyway. Even a vote of non confidence is used post facto (although one could have a vote of non confidence if a president would veto a law saying that Iran cannot be attacked).

As for prof. Lederman's argument about the UN charter: that depends. The security council has been issuing a lot of chapter VII resolutions. Amongst scholars it is still heavily debated if the attack on Iraq was legal (although I suspect that a consensus built that it was not).

The problem is that Iran is under no obligation safe for the SC resolutions to stop it's nuclear activities. It's no part of the non-proliferation treaty and thus not obliged to allow inspector into Iran. Even under the treaty Iran would be allowed to have nuclear energy. The US is trying to deny Iran something it is entitled to under international law.

The mere possession of nuclear technology can hardly be seen as threatening enough to invoke self defense. I would argue that attacking Iran would be a war crime unless there is an unequivocal resolution by the security council mandating the use of force

Bart Depalma said: "We appear to know where their nuclear facilities are located. If that is the case, our air power can take them out."

The article quoted Richard Armitage: 'Bombing Iran and expecting the Iranian public “to rise up” and overthrow the government, as some in the White House believe, Armitage added, “is a fool’s errand.”'

I have to say, Armitage makes a lot more sense. Bombing our way to a solution could possibly have just the opposite effect. Bombs may seem like an easy answer, but that's not always the case.

Bart Depalma said: "We appear to know where their nuclear facilities are located. If that is the case, our air power can take them out."

The article quoted Richard Armitage: 'Bombing Iran and expecting the Iranian public “to rise up” and overthrow the government, as some in the White House believe, Armitage added, “is a fool’s errand.”'

I have to say, Armitage makes a lot more sense. Bombing our way to a solution could possibly have just the opposite effect. Bombs may seem like an easy answer, but that's not always the case.

You do not bomb to cause an uprising, you bomb to knock out the nuclear facilities. In fact, bombing is likely to rally the people around the regime, at least temporarily.

As I posted above, there are no good alternatives here, only bad and worse.

Many thanks, as always, to Marty Lederman for his valuable qualifications of my reference to the War Powers Act.

Anne has referred to the "mandate" received by the President. A couple of comments: I think that most political scientists would be dubious about the ability to ascertain a specific "mandate" even in circumstances where a campaign concentrates on only one or two issues. It is especially difficult to ascertain mandates in our particular system, where the Electoral College (another hobbyhorse of mine) so completely distorts the campaign process. The candidates focus on the issues of importance to relatively few "battleground" states, such as, in 2000, prescription drugs for the elderly, maintaining the boycott against Cuba, and maintaining staunch support for Israel, and, in 2004, looking out for steelworkers in Ohio.

I also agree that a Congress with sufficient political will could take steps to rein in the presidency. It may be that my argument boils down to something like the following: If we had as an operative part of our political system the phenomenon of votes of "no-confidence," with replacement by the president's own party or a new election, then it would be part of Congress's job, so to speak, to take responsiblity for the presidency. They would have to answer questions from their constituents as to why they continued to trust someone who appeared to be incompetent. Lacking such a process, we also lack the language.

Perhaps an attack out of the blue on Iran would be an "impeachable offense," though I don't find that a self-evident truth, given our toleration of other acts of presidential unilateralism, including Bill Clinton's unilateral decision to bomb Serbia. But surely the main point is that it would be cold comfort to egage in ex post discipline of Bush, assuming that were likely, if, as many of us believe, such an attack would itself further the catastrophic elements of the present War. If one doesn't trust a Commander-in-Chief, far better to engage in ex ante removal rather than wait for what one foresees as a potentially catastrophic misjudgment.

Mr. DePalma's on-again, off-again relationship with the truth seems to be going through another rough patch.

The best available evidence seems to be that Iraq may have been 12-18 months from developing a workable nuclear weapon -- if it had been able to acquire the necessary fissile material -- in the 1990-91 time frame. However, as Mr. Kay, who headed up the search for WMD in the early stages of the U.S. occupation of Iraq, has noted,

[by about July 2003]"The nuke story was falling apart," Kay recalled. "We were getting a clear picture of what their nuclear capability had been, and quite frankly it was worse, much worse, than it had been in '91 at the start of the first Gulf War."

Woodward, State of Denial, at 228 (2006).

Another interesting tidbit from Mr. Woodward's book suggests that an invasion of Iran was being considered as early as June 18, 2003. See Woodward, at 224.

Mr. DePalma's on-again, off-again relationship with the truth seems to be going through another rough patch.

The best available evidence seems to be that Iraq may have been 12-18 months from developing a workable nuclear weapon -- if it had been able to acquire the necessary fissile material -- in the 1990-91 time frame. However, as Mr. Kay, who headed up the search for WMD in the early stages of the U.S. occupation of Iraq, has noted,

[by about July 2003]"The nuke story was falling apart," Kay recalled. "We were getting a clear picture of what their nuclear capability had been, and quite frankly it was worse, much worse, than it had been in '91 at the start of the first Gulf War."

Woodward, State of Denial, at 228 (2006).

Another interesting tidbit from Mr. Woodward's book suggests that an invasion of Iran was being considered as early as June 18, 2003. See Woodward, at 224.

@prof Levinson: I use the word mandate apparantly differently than you do.

You seem to mean that a mandate is a specific set of actions an elected official gets to perform because that was the platform he was elected upon. You are talking about a very specific mandate/obligation of an elected official to live up to his promises.

I am speaking of a more abstract mandate: the US has a representative democracy, not a direct democracy. The people elect their representatives (sometimes directly sometims indirectly). The elected officials get a certain status and powers because he is elected. He is mandated by the people to be their representative. He represents the abstract will of the people but he doesn't represent the will of the people as expressed in polls.

Secondly, you again state that my sollutions are post facto sollutions that give "cold comfort" because Bush would go ahead anyway. Again I ask you what sollution you propose that would solve this problem ante facte. A vote of confidence won't work as I argued before. The only sollution I see is taking away the position as commander in chief from the president

@prof Levinson: I use the word mandate apparantly differently than you do.

You seem to mean that a mandate is a specific set of actions an elected official gets to perform because that was the platform he was elected upon. You are talking about a very specific mandate/obligation of an elected official to live up to his promises.

I am speaking of a more abstract mandate: the US has a representative democracy, not a direct democracy. The people elect their representatives (sometimes directly sometims indirectly). The elected officials get a certain status and powers because he is elected. He is mandated by the people to be their representative.

I think the objection Sandy raised applies to both kinds of "mandate." The critical part of the concept is the notion that the authority to represent should ultimately be derived from the electorate, and not from electoral institutions.

The electoral college process allows a person to be elected President who does not have the support of the majority of the electorate, as long as the candidate is willing to concentrate on issues important to voters in key states (like Ohio and Florida). Therefore, the President so-elected has neither a mandate to represent the abstract will of the people, nor a mandate to implement the policies highlighted in the campaign. The electorate has not granted the authority to represent them at all; if their will had been accurately understood, the other candidate would be in office.

1) Who says we have the right to tell other countries whether or not they can have nuclear weapons? I'm not an idealist and certainly don't view a "nuclear" Iran with happiness, but they are a sovereign nation. We don't get to tell them what to do, as I think they have made clear. We may think we have the moral authority to dictate to them, but I don't see too many people outside the US buying that one anymore. There are about 5.8 billion other people on the planet, and most of them do not seem to care what we think. They may even agree that Iran shouldn't have nukes, but agreeing to that and agreeing that it's worth starting another long, bloody conflict to prevent it are two completely different things. 2) Since when does Bushco care about the Constitution? They obviously see it as a very minor inconvenience. If they are truly as stupid and crazy as some think they are, they'll start a war (police action, whatever) regardless of what Congress says. They'll just claim Executive Privilege (must be nice). If they're not stupid and crazy, they'll go through the motions to pretend they tried to do something about Iran only to be stopped by those pussies in Congress (ie, the Democrats) so they'll have something to brag about in the next election cycle. Guess we'll have to wait and see. Not much else we can do.

@pms_chicago: no I don't think Levinsons critique applies to both. What I mean is that there are two separate institutions that derive their power from the people. Therefor neither sould use its authority to oust the other with the argument that "that's what the people want.

This would not be different is the president would be elected directly.

Bart Depalma:"You do not bomb to cause an uprising, you bomb to knock out the nuclear facilities. In fact, bombing is likely to rally the people around the regime, at least temporarily.

As I posted above, there are no good alternatives here, only bad and worse."

True enough. Since you mentioned bombing as an option earlier, under what circumstances to you see bombing as the less worse option?

If we bomb, don't we then have the burden of proof to the world that the sites we hit were really part of a nuclear weapons development program? How do we do that without troops on the ground? If we show any kind of intelligence as evidence, don't we risk tipping our hand as to how we are gathering said intelligence, something we clearly don't want to do?

I mean, is it enough to just say "wasn't it obvious they were nuts and trying to develop WMDs"? If we were to do that, wouldn't that give weight to North Korea's assertions that its motivation is that it seeks protection from US military action? After all, aren't they next on the list?

I could see, for example, if we had a clean record internationally, disabling Iran's nuclear weapons development capability given their all but declared intention to wipe Israel off the map. But now that we've fumbled the Iraq ball so badly, how can we act in Iran and not lend substance to international resistance to cooperating with us in other areas? I'm just trying to think of it in terms that don't lead to a military action free-for-all with countries like North Korea feeling threatened enough to do something very foolish.

These guys. It's noteworthy that the President's smarter brother and the Vice President are signatories, even Dan Quayle, Scooter Libby and Rummy, but not the President. Makes you wonder who's really running the show. Anyway, your questions are spot on, Slash. And it's a damned shame they have to be asked in the first place.

The debate about the merits of calling a new Constitutional convention doesn't really seem to need my help, but I will repeat, the Rove's and Gingrich's still hold far too much sway for me to welcome any re-writing in the current cultural mix. Frankly, I shudder at the thought.

As for how we will get dragged into a conflict with Iran, I hate to foster paranoia, but did anyone else see this piece, from November 10, with the headline, "Israel official: Strike on Iran possible"? That would surely do the trick, Democratic Congress or no. I think it brings us back to Slash's question. What ever happened to sovereignty? Did it evaporate when we embraced the policy of pre-emptive war.

Don't let it get you, it's really the reason he's such an effective troll: He can say just enough right to hook us with with some small agreement. Then he reels in and lays on the partisan rhetoric, principles of sound argumentation be damned. But did he ever tell us what part of the MCA was letting his folks prove his citizenship when I get him locked up as an AUEC? No? Has he even admitted there is no such provision in the MCA? Of course not. That would require some kind of honesty, and there's no real room for that when your goal is the mere persuading of others to your world view. You and most of the rest of this blogs commentors are a little more willing to take the occasional hit in service of truth. Meanwhile Bart has been invaluable in supporting my point that this is not the moment in history to allow our central organizing document to be diddled, certainly not by the likes of him and his.

And, to clarify, when I say "him and his" I don't mean "conservatives." I mean intellectually dishonest hacks. By contrast, here's a nod for my conservative pal HLS, with whom I may not often agree, but with whom I certainly feel a tie of kinship in putting honesty and sound argumentation ahead of partisan posturing.

RE bombing: I would say it's obvious, but apparently it isn't to everyone, that the world is not a game of Risk. Iran isn't just a piece on the board that you can knock out with one fell swoop (if I'm remembering my Risk correctly, I may not). Iran is twice as big as Iraq and has 3 times its population. It's also pretty damn close to both China and India (which makes me think our nuclear pact with India is not unrelated to our issues with Iran, at the risk of stating the incredibly obvious again). There may be some people in Iran who love America (its culture, anyway), but I have a feeling they wouldn't feel quite so warmly towards us if we started bombing the hell out of them just to knock out their govt's nuclear capability. Are the representatives of the various "think tanks" not aware of this, or do they just not care? Do they really think anything good could come of bombing Iran? They would say Iran is a horrible undemocratic regime, but you could say the same thing about Cuba, and yet there Fidel sits, only 100 miles off our shore on a small island. We could easily replace him. So why don't we? I'm not saying we should, I'm just sayin'. I'm not sure why a nuclear Iran should be more fearsome to us than a nuclear China or India or Russia or Pakistan. Or North Korea. I have no doubt Iran is run by fools, but then so is our government. I'm more afraid of our govt right now than I am of Iran's. Maybe if I was in Israel, I'd feel differently.

Although I am on record as stating that the thought of the Founders isn't all that important to me, I still think it may be worth noting that none of them would have adopted a "mandate" theory of the presidency. There is, to be sure, some legitimate debate about how much "energy" the Executive was to possess, especially with regard to safeguarding national security, but surely the founding generation believed that "policy" and "law" were to be made by Congress and faithfully implemented by a virtuous president. As I note in the book, there were extremely few vetoes in the first fifty years of so of the Republic, and many of them were constitutionally based (including the most famous of the vetoes, Andrew Jackson's veto of the renewal of the Second Bank of the United States). I am confident that the framers would have been astonished at the extent to which the President has in effect become a third legislative house.

Still, I think it is clear that the modern President IS "mandated" to develop a legislative program that will be introduced by congressional allies. That doesn't entail, of course, a veto of whatever policies actually get through Congress (save on constitutional grounds) or an ability to ignore Congress, say, when deciding whether or not to engage in hostilities.

Mr. DePalma's on-again, off-again relationship with the truth seems to be going through another rough patch.

OK, give it your best shot...

The best available evidence seems to be that Iraq may have been 12-18 months from developing a workable nuclear weapon -- if it had been able to acquire the necessary fissile material -- in the 1990-91 time frame.

This is correct.

However, as Mr. Kay, who headed up the search for WMD in the early stages of the U.S. occupation of Iraq, has noted,

[by about July 2003]"The nuke story was falling apart," Kay recalled. "We were getting a clear picture of what their nuclear capability had been, and quite frankly it was worse, much worse, than it had been in '91 at the start of the first Gulf War."

Woodward, State of Denial, at 228 (2006).

Mr. Kay had left the WMD team fairly soon after the liberation. His report was mostly restricted to what Saddam's scientists were telling him in post war interviews. There is no report that he or his team reviewed any of the 33,000 boxes of captured Iraqi documents.

The NYT reported that among those documents posted at the government website were detailed descriptions of nuclear plans based on what they claim was pre Gulf War technology, but on documents dated in the mid 90s - years after Iraq allegedly gave up its nuclear program. If Iraq maintained and apparently updated the nuclear weapons technology it had before the war, then Iraq was still within a year or so of making a bomb as soon that they obtained all the necessary materials. The testimony from the ex PM from Chad that the Iraqis were sniffing around his country for yellow cake in the late 90s indicates that Iraq was still attempting to obtain those materials.

Indeed, the final Duelfer report which claimed that Iraq had destroyed all of its WMD in 1991-92 was pretty much gutted by these captured documents. Duelfer found no documentary or physical evidence that Iraq's vast stocks of WMD had been destroyed. Instead, he was primarily relying on the claims of one Hussein Kamel, who was Saddam's WMD chief. However, Kamel was telling Saddam something very different during a tape of a staff meeting with Saddam dated in 1995:

At one point Hussein Kamel, Saddam's son-in-law and the man who was in charge of Iraq's weapons of mass destruction efforts can be heard on the tapes, speaking openly about hiding information from the U.N.

"We did not reveal all that we have," Kamel says in the meeting. "Not the type of weapons, not the volume of the materials we imported, not the volume of the production we told them about, not the volume of use. None of this was correct."

http://abcnews.go.com/Nightline/Investigation/story?id=1616996

There are a wide variety of other captured documents which are dated across the 90s up to just before the liberation of Iraq which refer to chemical, biological and nuclear weapons. There are over 1 million estimated documents which have no been reviewed.

If you are interested, I can give you several links to translations of released documents.

If you are going to accuse me of lying, you better have some contrary facts to back it up.

Bart Depalma:" You do not bomb to cause an uprising, you bomb to knock out the nuclear facilities. In fact, bombing is likely to rally the people around the regime, at least temporarily. As I posted above, there are no good alternatives here, only bad and worse."

True enough. Since you mentioned bombing as an option earlier, under what circumstances to you see bombing as the less worse option?

There is not a doubt in my mind that Iran is seeking a nuclear arsenal. IMHO, an Islamic fascist regime who has a long history of terrorism, who openly speaks of wiping other countries off of the Earth, who just started a war with Israel with through a proxy terror group and who obtains nuclear weapons is the worst option.

If bombing can reasonably be expected to cripple Iran's nuclear capability, then it becomes a less worse option.

If we bomb, don't we then have the burden of proof to the world that the sites we hit were really part of a nuclear weapons development program?

Yes, we will need to share some of our intelligence.

How do we do that without troops on the ground?

Capturing the facilities would be better. However, a ground war in Iran would be a much tougher sell and I do not believe a Dem Congress would authorize it.

If we show any kind of intelligence as evidence, don't we risk tipping our hand as to how we are gathering said intelligence, something we clearly don't want to do?

Sometimes you have no choice. Intelligence which is not acted upon is useless trivia.

If I understand the argument here, it rests on the factual predicate that President Bush is objectively, demonstrably incompetent. In that case, I don't see why Congress should have to be involved in remedying the problem. If Bush had appendicitis, Congress wouldn't vote on what to do about it; a trained surgeon would be consulted. Wouldn't it make more sense to deal with the current problem of objectively demonstrable incompetence by establishing a board of people with very high LSAT scores to remove any president who fell below the minimum standard? That is, after all, how future lawyers are chosen.

Nuclear (or chemical or biological) weapons cannot be made with know-how alone, or with documents. They require physical plant, active manufacturing facilities. These are relatively easy for inspectors to examine. It is my understanding that what David Kay and other inspectors found was rusty, dilapidated and out of use.

Can you present any evidence that active manufacturing facilities were found capable of making nuclear weapons, or any other WMD?

I know the question was address to Bart, but I'll pick up with what I know.

As far as I am aware, there was no substantial amoung of equipment discovered for the production of WMDs.

What was discovered was that Iraq actively retained and protected the technical know-how for creating such weapons.

Obviously, there is a great and important distinction between the two. I don't intend to minimize it.

Unbeknownst to many (if not most) observers, the sanctions against Iraq were better at preventing Iraq from obtaining the proper materials and equipment to produce WMDs than any expected.

On the other hand, France, China, and Russia were actively pushing for the sanctions against Irag to be dropped. Furthermore, France's TotalFinaElf (an oil company predominatly owned by the French government) was negotiating contracts for the development of oil fields in Iraq. And just prior to the invasion, Russia signed a multibillion dollar contract to improve the infrastructure of Iraq. Some postulate that Iraq was using these deals to buy support in the Security Council. Regardless, at the very minimum, the financial interests of these key countries were going against sanctions.

Assume we had not gone to war. WOuld the sanctions have continued indefinitely? France, China, and Russia were already blatantly flouting them and pushing for their removal.

If they had been removed, what do you think Saddam would have spent his oil money on?

None of this is definitive one way or another -- it doesn't say whether war was appropriate or not. But, these are hard questions that should inform the current debate, but are typically lost among discussions of the general incompetence of the post invasion Iraq.

Thank you for your response. It is, I think, the most honest defense of the war (a good deal more honest than Bart's, if you will forgive my saying).

But, IMO, it is still not enough. It amounts to saying that sooner or later the sanctions would have been dropped and then sooner or later (clearly you believe sooner) Saddam would have resumed his WMD programs that sooner or later (probably later, given the poor condition of the physical plant) he would have succeeded.

@Bart:So if, as you suggest (for the sake of discussion), we bomb/occupy Iran, how do we avoid giving credibility to the likes of North Korea who claim they need nuclear weapons to deter military action from the US? What can we do to try to hold onto any international political capitol which we'll continue to need in order to effectively pursue and capture terrorists, and prevent international terrorism being waged against us?

Perhaps more interesting, if we take action against Iran but not North Korea, doesn't that send a pretty clear message to the nations of the world that nuclear weapons will in fact protect them from the US?

@bitswapper: these are the thoughts that Mohamed ElBaradei is scolded from. Though he and you are right of course: the whole situation goes to proof that there is no better guarantee for being free than having a nuclear weapon (regardless whether Iran wants or has one).

Thanks to US positition the whole nuclear proliferation is coming down. The treaty was based on sharing info on nuclear energy on the condition of not pursuing nuclear weapons. The states that already had nuclear weapons are obliged to gradually get rid of them. The stubborness of the countries with the weapon combined with the agressive approach to countries that try to make nuclear energy, actually drives the countries without nuclear weapons, to developping them.

Bart said: "The NYT reported that among those documents posted at the government website were detailed descriptions of nuclear plans based on what they claim was pre Gulf War technology, but on documents dated in the mid 90s - years after Iraq allegedly gave up its nuclear program."

Reread the article. The NYT makes it clear that although the documents posted were dated in the mid 90s (because they were prepared for UN weapons inspectors), the plans they refer to predated the Gulf War.

From that article:Among the dozens of documents in English were Iraqi reports written in the 1990s and in 2002 for United Nations inspectors in charge of making sure Iraq had abandoned its unconventional arms programs after the Persian Gulf war. Experts say that at the time, Mr. Hussein's scientists were on the verge of building an atom bomb, as little as a year away.

"At the time" refers to the Persian Gulf War, not 2002.

Later in the article, this is made even more clear: On Sept. 12, [the web site] posted a document it called ''Progress of Iraqi nuclear program circa 1995.'' That description is [b]potentially misleading[/b] since the research occurred years earlier.

And finally in the Nov. 7 correction, another allusion to the fact that the nuclear program had not been restarted:A front-page article on Friday ... misstated the reason that Senator Pat Roberts, chairman of the Senate intelligence committee, gave for the campaign for the Web site. Mr. Roberts, Republican of Kansas, argued that the captured documents posted on the site would provide valuable information about Iraq under Saddam Hussein. He did not say that he believed they would support the idea that Mr. Hussein had resumed his unconventional arms programs before the 2003 invasion.

As for the Deulfer report being gutted by the documents and especially tapes of conversations between Hussein Kamel and Saddam Hussein, that interpretation runs completely contrary to what the office of the Director of National Intelligence says:

A U.S. official said the tapes "do not change the story" on Saddam's weapons programs in any substantive way.

"We already knew he had them in the early '90s and wanted to get them again after he lost them but was not able to," the official said.

A spokeswoman for Director of National Intelligence John Negroponte said the tapes were "fascinating," but they "do not reveal anything that changes their postwar analysis of Iraq's weapons programs, nor do they change the findings contained in the comprehensive Iraq Survey Group report."

The Survey Group report, written by Charles Duelfer and published in October 2004, concluded that Iraq had no weapons of mass destruction when the United States invaded in March of 2003, but the regime intended to resume its WMD programs once U.N. sanctions were lifted.

Of course, perhaps pre-emptive action could be justified by the fact that they continued to archive the knowledge that would one day allow a non-nuclear country to build nuclear weapons. But in such a moral framework, what would you do to a country that provided that knowledge free of charge to anyone that can 1) use the internet and 2)have Arabic translated?

I suspect that if Syria or Iran posted the instructions on a government web site, we'd all be crying state-sponsored terrorism and gearing up for an invasion.

Bart:Nuclear (or chemical or biological) weapons cannot be made with know-how alone, or with documents. They require physical plant, active manufacturing facilities...Can you present any evidence that active manufacturing facilities were found capable of making nuclear weapons, or any other WMD?

Active? Not that I know. Existing dual use facilities? Massive numbers.

http://www.cnn.com/2004/WORLD/meast/10/12/iraq.nuclear/

Ongoing research? It appears so from the captured documents released and translated to date. Here are just a few of the intriguing translated documents....

In pages 63 and 64 of document Document CMPC-2003-002284 , there is secret and confidential memo dated September 16 1998 concerning a meeting of the National Monitoring Department to discuss how to destroy some “non necessary documents” and keep the necessary one in a safe place according to the memo but the most important part of the memo is a pareagraph on how to handle “The Researches That Cannot Be Declared and that is related with the previous Prohibited Programs of WMD and how to make sure that information about these researches will not leak to the outside because it will be too dangerous if this happened”. Yet another document that proves without any doubt that Saddam Regime never stopped working in his WMD programs and Research and they were just waiting for the opportune moment to produce these WMD again on a large scale. Also remember that in September 1998 the UN inspectors were still in Iraq and they were kicked later on that year after some US air and missile strikes. So most definitely these Secret Research Programs related to WMD were still in existence and may have reached a more advanced stage from late 1998 to late 2002 where during this period of time there were no UN inspectors in Iraq.

Document CMPC-2003-000537 is a secret and personal memo written in November 1999 by the director of the Iraqi National Monitoring Department (NMD) and addressed to the Minister of the Iraqi Military Industrialization Commission (MIC). The memo talks about a Neutron Source Device with High Radioactive Activity that was found in one Iraqi University and the NMD is asking that it should be returned to the Iraqi Atomic Energy Organization. The Neutron Source Device can be also called Neutron Generator or Neutron Initiator. This Neutron Generator device was not declared to the UN inspectors all the time they were in Iraq from 1991 to late 1998 when they were kicked out of Iraq. In fact Neutron generators were prohibited to be used by the Iraqis according to this UN document ( http://www.un.org/Depts/unmovic/documents/S-2002-515.pdf page 133 of this UN document pdf, an * next to an item means it is porhibited).

Document CMPC-2004-000404 dated 2001 indicates that Saddam Regime still has an Active Chemical Platoon in Al Qadisia Air base. In fact the first page of the document lists the results “open tournament” i.e. “open training tournament” for the members of the Chemical Platoon. Page 8 and Page 9 show tables that list the status of “Specialized Vehicles” used by the Chemical Platoon. On the top of Page 9 the year 2001 is shown and this prooves that this document was written in 2001. Also page 8 and page 9 show the name and signature of the same guy who is the Commander of the Chemical Platoon at Al Qadisia Air Base, his name is Captain is Mohamad Taha Hassan. The remaining pages show the name of soldiers and their vacation time.

Pages 186 and 193 of document BIAP 2003 00090 carry one of the most important information revealed so far regarding Saddam Nuclear Program. In these two pages which document a summary of meetings held by members of The Military Office of the Iraqi Baath Party and dated May/12/2002 and June/9/2002 they have a section that discuss Saddam Hussein meeting with the Chairman of the Atomic Energy and an elite of researchers.

I first thought that this may be a reference to a meeting between Saddam and the head of the International Atomic Energy Agency (IAEA) so I called both of IAEA offices in New York and Vienna to check if Saddam had any meeting with the IAEA Chairman prior to May 2002, and they indicated to me that they do not recall any such meeting of IAEA chairman and Saddam prior to May 2002.

What is also important is that President Bush in a speech dated October 7 2002 mentioned that Saddam has held numerous meetings with his nuclear Scientists and I quote from President Bush “The evidence indicates that Iraq is reconstituting its nuclear weapons program. Saddam Hussein has held numerous meetings with Iraqi nuclear scientists, a group he calls his "nuclear mujahideen" -- his nuclear holy warriors” (see: http://www.whitehouse.gov/news/releases/2002/10/20021007-8.html ).

So this document shows that it is true that in 2002 Saddam still has an active nuclear program if he still has a Chairman of the Atomic Energy Group and a group of Nuclear Scientists.

http://www.freerepublic.com/focus/f-news/1608944/posts

Russian scientists in Iraq hide during surprise U.N. inspection

WOW! Sammi found this at the FMSO database of the newly released Iraq Regime documents. It details Iraqi efforts to monitor a U.N. inspection team, break into their personal briefcases (actually says it was complained about but not that they did it), and hide Russian and Turkish scientists. As usual, the parentheses are the translators. (PDF)CMPC-2003-000776

@Bart: So if, as you suggest (for the sake of discussion), we bomb/occupy Iran, how do we avoid giving credibility to the likes of North Korea who claim they need nuclear weapons to deter military action from the US?

If you are bombing to keep Iran from obtaining nukes, then the counter argument is that attempting to obtain nuclear weapons makes it more likely, not less likely, to lead to war.

What can we do to try to hold onto any international political capitol which we'll continue to need in order to effectively pursue and capture terrorists, and prevent international terrorism being waged against us?

Mutual self interest. The only countries currently cooperating themselves consider the Islamic fascists to be a threat. Those like Syria and Iran who are state sponsors are not likely to change their acts regardless of how nice we are to them.

Perhaps more interesting, if we take action against Iran but not North Korea, doesn't that send a pretty clear message to the nations of the world that nuclear weapons will in fact protect them from the US?

We had our opportunity to deal with NK back in the early 90s and failed. As a result of that failure, we have a leader of questionable sanity who thinks that slasher films are an art form aiming nukes at us. That failure should not be an excuse for future failures of will with other predatory regimes.

Active? Not that I know. Existing dual use facilities? Massive numbers.

And these dual use facilities, for nuclear weapons, or for chemical and biological? You are, after all, emphasizing nuclear weapons here.

And above all, what about Saddam's uranium centrifuges. Active? Operational? Rusted and non-functional? Since Israel destroyed his nuclear power plant, and with it, the possiblity of recovering plutonium, the state of Saddam's uranium enrichment program is the most critical indicator of how close he was to having actual nuclear weapons.

Bart: We had our opportunity to deal with NK back in the early 90s and failed.

This, of course, is exactly the arrogance for which so many in the world despise us. It is not our place to "deal with nations", unless one adopts the "world policeman" mentality so nicely packaged by PNAC. What strikes me as particularly funny is that Bart's partisans are quick to argue State sovereignty when it fits some political agenda, but have no stomach for National sovereignty where it conflicts with the hegemonic vision of the Rove/Gingrich machine. Pity. Meanwhile nonsense of this type supports the notion that slippery slopes do exist: If you permit of any pre-emptive strikes the day will come when fools, and sophists, argue you have permitted all, much as they will argue an invader constitutes and invasion (with a straight face even!)

It's also strange that the Bart's of this world feel that "deal with" is an adequate synonym for "abrogate the sovereignty of" rather than the plain meaning of those words, more akin to "interact with," as in "fair dealings with others." Were we to deal fairly with other sovereign nations, say in some assembled body like the UN, we might have more and better allies and more and better options for bringing rogues to heel in the community of sovereign nations. Instead more and more of that community daily comes to see us as the rogue.

btw, Bart, which part of the MCA was it that lets your folks prove your citizenship after you get picked up, wrongfully, as an AUEC? Still looking for that one? Or are you ready to "man up" and admit that absent habeas, the right to a speedy trial (or commission) and the right to present evidence you are pretty much out of luck? Well?

Bart: Active? Not that I know. Existing dual use facilities? Massive numbers.

And these dual use facilities, for nuclear weapons, or for chemical and biological? You are, after all, emphasizing nuclear weapons here. And above all, what about Saddam's uranium centrifuges. Active? Operational? Rusted and non-functional? Since Israel destroyed his nuclear power plant, and with it, the possiblity of recovering plutonium, the state of Saddam's uranium enrichment program is the most critical indicator of how close he was to having actual nuclear weapons. What was it?

Good questions all. I do not know. CIA has not released any detailed information on the WMD programs, has not reviewed the vast majority of captured Iraqi documents, claims to have classified 1/3 of the few hundred pages of captured documents which it has translated and has now withdrawn the documents to which the NYT was referring. The 3-4 active translators in the blogosphere, to their credit, reported these documents when they found them and did not post the translations.

Thus, we are being kept in the dark about the progress made by Saddam on WMD before the liberation of Iraq. Given that this regime is gone, I do not know why general information in this area has not been released. If I had to hazard a guess, I would note that CIA has committed itself to the claim that Saddam destroyed his WMD and the Administration has always been committed to classifying nearly everything.

However, the released documents kept referring to ongoing WMD programs and the counter intelligence measures to keep the UN from discovering these programs, which contradicts the CIA line. Now that that flow of documents has been shut off because of the release of the nuclear weapon details, I fear that CIA will again try to block any renewed release of these documents.

@Bart: Should we have bombed Pakistan in 1972 when they started their nuclear weapons program? Would it make sense to occupy them, since they have a track record of both leaking such technology, and clandestine support of the Taliban in Afghanistan? Doesn't even the remote possibility of such a country harboring Al-Qaeda provide sufficient rational for military action?

Various commentators ask "Why wasn't X country attack on Y date? Wasn't X as bad as Iraq?" And similar questions.

Legitimate questions.

The short response is that every situation faced is unique. In each, while there may be common elements, e.g. development of WMDs, dangerous regime, etc., the similarities only go so far.

Important considerations are: the political climate both home and abroad towards military action; the leaders in power; the military forces available; the threat of instability in neighboring regions; the likliehood and magnitude of a response by the target country against its neighbors (whether using WMD or conventional arms).

Very few of these considerations are consistent across the countries mentioned. So, it is problematic at best to say, "Look we attacked X for their WMD, but didn't attack Y for theirs. Inconsistency Alert!"

All of the factors mentioned previously must be accounted for when determining what type of action is appropriate.

Let me provide an example. I don't recall when Pakistan first started developing its nuclear weapons, but I'll assume Bitswapper's year of 1972 is correct.

First, Al-Qaeda wasn't in existence in 1972. The Muslim Brotherhood was the bad boy on the block.

What we had was the great Soviet Bear to contend with. Practically all other considerations were subordinate to dealing with and the preventing the expansion of Soviet Power -- stability was the watchword.

Pakistan was no direct threat to us. Causing instability in a country not hostile, could at best leave the status quo, and at worst lead to greater Soviet influence within the country. Further, as we found during the Soviet invasion of Afghanistan, Pakistan was an important base for the fight agains the Soviets in Afghanistan.

Having a nuclear Pakistan ensured that the Soviets wouldn't make any such moves on Pakistan as they did against Afghanistan. It was in our interest to encourage it.

Of course, this is the aftermath story across the world. Many of our troubles today are a result of the policies that we thought necessary to defend against the Soviet threat. Overall, I think we used the right strategy.

Unfortunately, there was no good option. Many of the same actions that ended the Soviet threat also laid the groundwork for the problems we have today. But overall, I think it was a price worth paying.

Of course, anyone can pick out a few situations in which our chosen course of action didn't help us against the Soviets and only lead to resentment against the US. But, broadly speaking, I think our strategy was borne out.

Today, we continue dealing with the legacy of the Soviet Union. We are left having to clean up some of the mess we made to defeat the greater threat of old.

How do you come to such a conclusion? The fall of the Soviet Union, a simple, "the ends justifies the means" answer which ignores that part of those ends are nine-one-one? What criteria go into thinking we used the right strategy? Or is it really more an article of faith amongst conservatives? Because even if we stipulate that the USSR had to go and we had to be the means of their going, certainly the cost of our current situation is arguably too high, especially in light of legislation like H.R.3162 and MCA which bring us closer to Soviet style political repression than most of us ever dreamed possible. I do not see how we are one whit better off today than under the "cold war" of the 70s and early 80s. On the contrary, the world is a much scarier place, with an increasing, rather than decreasing chance of nuclear war, and an increasing distrust of my own government. So if we agree that our strategy brought us here I cannot then agree it was "the best" or even adequate.

I come to that conclusion for a variety of reasons that involve far more writing than I care to do at this point.

We can disagree. I'm not really trying to convince anyone that we used the right strategy.

At the risk of getting dragged into a hopeless argument over costs, I'd say this. The fight with the Soviet Union involved literally the fate of the world. The Islamists will likely never have the ability to conquer or destroy the world. Plus, the number of lives involved in the fight with the Soviet Union far dwarfed what is and likely will be lost (though the future could prove me wrong).

At to your essentially lost values point, America is strong. If the President is overreaching, I am very confident that his overreaching will be balanced out in the future. No permanent irreperable damage will be done. (Once again, I could be wrong, but I don't see it as very likely).

What I would say is that history bears out the fact that America, for all of her many, many faults, has always been one of the leading lights for liberty, if not the leading one. Whenever that light has dimmed, people have risen forth.

Any severe damage down to our Constitional order and values, will be undone. Further, any such actual or potential damage is far outweighed by what the USSR would have wrought had it been victorious.

From September 18, 2001 to the passage of the MCA to the looming "Terrorism Surveillance Act" the light dims daily. Folks like Professors Balkin and Levinson and Lederman are rising forth. And I would argue they need your help, for your assumptions about the future balancing things will only bear fruit if everyone able does their level best to keep the scales from tipping too much in the first place. You say any severe damage to the Constitution will be undone. I say a stitch in time...

Quite true. I don't see the sense in arguing that 'we could've and should've' is rational as to what to do now, although correcting past mistakes is never a bad thing to consider in the present.

HLS:"At to your essentially lost values point, America is strong. If the President is overreaching, I am very confident that his overreaching will be balanced out in the future. No permanent irreparable damage will be done. (Once again, I could be wrong, but I don't see it as very likely)."

This really seems to make sense, but I have yet to see anyone offer a likely scenario under which the 'war on terror' (the reason for the executive running around the constitution) is actually over. Honestly, in every previous situation in which foreign hostilities have given rise to shorting the constitution in order to protect the citizenry, there was an easily definable set of circumstances wherein the normal state of freedom and democracy could resume.

However, since one small group can achieve 'terrorist' status with next to no resources practically speaking the 'war on terror' and the shunting of the constitution will continue for as long as the eye can see. It doesn't even seem clear as to what constitutes a 'terrorist organization' other than any given group of people who are 'planning and plotting' to harm US interests.

In fact, acts perpetuated by any given individual with few resources can perpetuate the 'war on terror'. We cannot even reasonably contemplate releasing even one detainee, civilian or otherwise, since one person can wreak considerable damage as an all but lone terrorist. Some biological agents are relatively cheap and easy to produce for the individual or small group.

Really, I'd like to see proponents of shunting the constitution and of the war on terror to offer some kind of reasonable or at least realistically definable scenario when such a struggle can be considered won, and freedom and democracy as it was known previous (at least mostly) to resume.

Who says we have the right to tell other countries whether or not they can have nuclear weapons?

Let us turn around that question...

1) Are there any regimes at all which you feel would present a danger to their neighbors if they obtained nuclear weapons?

2) If so, what are you willing to do about it?

Let us put the question in a more personal form...

If a thug lived down the street from you and that thug repeatedly and publicly threatened to kill your friends next door, should that thug be allowed to buy a machine gun?

Robert Link said...

It is not our place to "deal with nations", unless one adopts the "world policeman" mentality... It's also strange that the Bart's of this world feel that "deal with" is an adequate synonym for "abrogate the sovereignty of"...

OK, you are saying than any sovereign nation, regardless of their intentions, should be allowed to obtain nuclear bombs.

But then you say...

Were we to deal fairly with other sovereign nations, say in some assembled body like the UN, we might have more and better allies and more and better options for bringing rogues to heel in the community of sovereign nations. Instead more and more of that community daily comes to see us as the rogue.

Oh, so it is only the evil United States who should not be able to act to keep its enemies from obtaining nuclear weapons, but it is OK if the UN does so.

I saw someone invoking the t-word in this thread, so I take the liberty to refer to the brief of Janet Reno. Please note that the brief implies that the reason Al-Masri was designated an enemy combatant (after 1,5 year of preparation into criminal proceeding) was his motion to dismiss the criminal charges because the evidence was obtained by a search in violation of the fourth amendment. The alleged facts in designating Al-Masri an enemy combatant are exactly the same as tled to the indictment.

The plot thickens: Remember that hhere is duscission whether the NSA-program is a violation of the fourth amendment.

Bart: Oh, so it is only the evil United States who should not be able to act to keep its enemies from obtaining nuclear weapons, but it is OK if the UN does so.

Here we go again with the "Blame America First" pathology...

Your value here, even as a troll, is significantly reduced if this is the best you can do. What continues to amaze me is how you "textualists" so blithely invent, whole cloth, connotations which simply aren't present in the text of your ideological opponents. "Chicanery" is the only word for it. Straw men, red herrings and odious false implication seem all you're good for.

Unless, of course, you've figured out that missing part of the MCA, the one that gives you due process rights, so your family can prove your citizenship after you get locked up, wrongfully, as an AUEC. Still no? I only ask because you are so persuasive, maybe you can persuade me. We both know what the truth of the matter is on that one, and exactly why you are so silent on it.

Yes, Bart, I believe in limits on states rights under a federal constitution, and likewise on national rights in a community of sovereign nations. And I believe in protection of state sovereignty under a federal constitution, and national sovereignty in a community of nations. Balancing these beliefs, these values, takes depth. The U.S. is flawed, the U.N. is flawed, and each of the component parts of each are flawed. Some of us are trying to fix those flaws, to create the moral high tide that lifts all boats. I suspect you were a fine foot soldier. You'd be a great cop, would always get your bad guy. But statements like the above show you really haven't the depth for more important work.

Anne links to a number of briefs which argue that al Qaeda members captured in the United States should be treated a civilians and may only be held pursuant to criminal charges.

Furthermore, in her brief, Reno alleges that the evidence against al Masri was gained outside of the 4th Amendment, implying that al Masri should be actually be released after being returned to the criminal justice system.

Therein lies the Catch 22.

Federal courts have unanimously held that the 4th Amendment allows the government may conduct warrantless surveillance for the primary purpose of intelligence gathering, but bars warrantless surveillance if the primary purpose is gathering evidence for a criminal prosecution. See, e.g., United States v. Truong Dinh Hung, 629 F.2d 908 (4th Cir. 1980), cert. denied, 454 U.S. 1144 (1982).

Thus, the 4th Amendment does not bar surveillance of a foreign enemy agent in the United States for the purpose of intelligence gathering, one purpose of which would be identify the target as an enemy agent.

However, if the target cannot be considered an enemy combatant while in the United States and must instead be treated as a civilian criminal suspect who may only be detained based on sufficient evidence to provide probable cause of a crime, then the 4th Amendment would bar any warrantless surveillance of the enemy.

This is insane.

One of our primary tools of war is warrantless electronic eavesdropping. We have used such tools to decimate al Qaeda overseas and to capture its leaders for years. However, under this novel regime of treating foreign al Qaeda as civilian criminal suspects, we lose this tool if the al Qaeda cell makes it into the United States.

Slash:Who says we have the right to tell other countries whether or not they can have nuclear weapons?

Bart:Let us turn around that question...

Instead, let's look at why Bart's maneuver here is illegitimate.

The topic is sovereignty, the rights and duties of nations in the community of nations. There are useful parallels to the rights and duties of citizens in a community of individuals in a nation of laws.

Bart:1) Are there any regimes at all which you feel would present a danger to their neighbors if they obtained nuclear weapons?

A logical non-sequitur, but a rhetorically effective step of getting the sucker to say "yes," the idea being to build on that agreement. Read any sales book and you will learn this trick. It is coarse and low, but can be effective with a wide range of people, and some folks never get over the flush of early success with it. Logically, it's on a level with "Men die, and grass dies, so men are grass." Just because we agree with the two premises does not mean there is any validity to the conclusion. Good persuasion, bad logic.

Bart:2) If so, what are you willing to do about it?

The money shot. What are the implications of such a question? Note the absence of any criteria of lawfulness or morality. The only criterion here is will. Any answer to such a question leaves standing the unspoken presumption that will is the only relevant criterion. Again, good persuasion, terrible logic, and worse ethics. Worse still, from a simple pragmatic analysis of making the world a safer and more prosperous place for all, such persuasively flawed logic and ethics leads us only to the spiral of escalation, of might-makes-right. It's not a road moral people, nor patriots of nations founded on principles of liberty and justice can walk with a clean conscience.

Bart:Let us put the question in a more personal form...

This certainly sounds reasonable. I have already invoked reasoning by reference to analogies of personal responsibility, so it seems hard to deny Bart his turn at same. But let's watch close and see if he palms a card.

Bart: If a thug lived down the street from you and that thug repeatedly and publicly threatened to kill your friends next door, should that thug be allowed to buy a machine gun?

Gotcha. Appeal to emotion. Sophistry.

What Bart's question leaves out, of course, is the rule of law. Bart is calling for vigilante law, in his personal hypo above, to support vigilante foreign policy, vis a vis the U.S. with North Korea, Iran and Iraq. If the analogy of individual behavior is apt, then the context of membership in a community and being subject to the rule of law must come along for the ride. Thus Bart actually does a better job of making my case than of making his own.

Individuals in a community of laws accept certain limits on their freedoms in exchange for similar limits on others; we may not gratuitously kill each other, nor even maim nor even threaten or frighten each other. Likewise, the thirteen states which founded this nation traded some of their sovereignty in service of a greater good, and that has worked out pretty well for us. So too, in time, nations must balance their short term interests against the long term interests of a higher good which can only be accomplished by a community of nations. We must balance the worthy and noble value of each nation's sovereignty, like each individual's freedom, with the worthy and noble value of creating a community of nations with rewards for all not unlike the rewards reaped by our foundingthirteen states.

However, even absent that lofty goal, there is still no moral, nor legal, justification for the unilateral abrogation of the sovereignty of other nations within a community of nations. Such acts are the acts of rogues. Vigilante is as vigilante does, Bart. Meanwhile, have you found those missing clauses in the MCA yet?

Slash: Who says we have the right to tell other countries whether or not they can have nuclear weapons?

Bart: Let us turn around that question...

Instead, let's look at why Bart's maneuver here is illegitimate. The topic is sovereignty, the rights and duties of nations in the community of nations.

My question dealt specifically with the limits of national sovereignty.

There are useful parallels to the rights and duties of citizens in a community of individuals in a nation of laws.

Dear reader, keep this response in mind when you read Robert's response to my attempt to reduce this question to a personal level below.

Bart: 1) Are there any regimes at all which you feel would present a danger to their neighbors if they obtained nuclear weapons?

A logical non-sequitur...

Robert, without looking it up, can you even define a non-sequitor? Next, how is my question a non-sequitor? Using big words for unsupported hit and run attacks does not make you look intelligent.

...but a rhetorically effective step of getting the sucker to say "yes," the idea being to build on that agreement. Read any sales book and you will learn this trick.

Actually, this is a useful cross examination technique for cornering those who are avoiding a subject. You boil the question down to the nub of the issue so the witness can no longer avoid the subject.

However, if the court is not around to order the witness to answer the question, then a witness such as yourself will simply refuse to answer the question which guts your position.

Logically, it's on a level with "Men die, and grass dies, so men are grass." Just because we agree with the two premises does not mean there is any validity to the conclusion. Good persuasion, bad logic.

I am not offering a syllogism. I simply asked you a straight question and would appreciate a straight answer, if you are capable of giving one.

Bart: 2) If so, what are you willing to do about it?

The money shot. What are the implications of such a question? Note the absence of any criteria of lawfulness or morality. The only criterion here is will. Any answer to such a question leaves standing the unspoken presumption that will is the only relevant criterion.

This is not a leading question with a suggested answer. If your answer to my first question was yes, then that answer begs this second question - what are you going to do about it. You can answer "nothing" if that is your opinion.

Worse still, from a simple pragmatic analysis of making the world a safer and more prosperous place for all, such persuasively flawed logic and ethics leads us only to the spiral of escalation, of might-makes-right.

Where in that question is there a suggestion that the use of force is the only answer?

Bart: Let us put the question in a more personal form...

This certainly sounds reasonable.

I am glad you agree after you suggested above that a comparison between nations and individuals might be apt.

Bart: If a thug lived down the street from you and that thug repeatedly and publicly threatened to kill your friends next door, should that thug be allowed to buy a machine gun?

Bart is calling for vigilante law, in his personal hypo above, to support vigilante foreign policy, vis a vis the U.S. with North Korea, Iran and Iraq.

Really? In fact, I would call the police and the DA in such a situation. The purpose here is to show that the limits of personal and national sovereignty end when a person or nation threatens the safety of another. You are jumping ahead one step of where I am.

Individuals in a community of laws accept certain limits on their freedoms in exchange for similar limits on others; we may not gratuitously kill each other, nor even maim nor even threaten or frighten each other.

I agree with that statement so far as it goes. However, one of the basic rights of nations and individuals is the right to defend oneself or another from the threat of a third party. This right does not disappear when a government or an international body attempts to assume the duty of security.

If the police do not respond, then you have the right to act to protect yourself and your neighbors. If the UN decides not to act, then a nation has the right to protect itself and its fellow nations.

Bart: I simply asked you a straight question and would appreciate a straight answer, if you are capable of giving one.

Sure thing, sonny, right after you answer the one about how your family gets the chance to prove your citizenship when you get picked up, wrongfully, as an AUEC. Rather a bit of the pot calling the kettle black, your bit above, no?

Bart: You are jumping ahead one step of where I am.

You should be quite accustomed to that.

Bart: Where in that question is there a suggestion that the use of force is the only answer?

Robert: What continues to amaze me is how you "textualists" so blithely invent, whole cloth, connotations which simply aren't present in the text of your ideological opponents. "Chicanery" is the only word for it. Straw men, red herrings and odious false implication seem all you're good for.

More of same from you, more of same from me. You offer only the criterion of "will." No one said anything about force---nor about law or morals. You, however, are either not literate enough or not honest enough to make such distinctions. Where, exactly, do you find the word "force" in my comment?

Lastly, it does not follow that simply because you like writing with a tone of faux authority that you can legitimately demand anything of me, not even definitions of the words you have to look up to understand the conversation of your, many, superiors.

Pardon this little act of thread hi-jacking, but one of my long term projects is to better articulate why it seems liberals so often get creamed by conservatives. The answer, of course, is intellectual rigor and intellectual honesty, two factors entirely lacking in the Rove/Gingrich machine.

Have you quit beating your wife yet?

This is not a leading question with a suggested answer. It is much worse. It is a question for which nearly all answers leave unchallenged an odious presupposition. "Yes," allows the inference that the answerer beat his wife. "No," allows the inference that the answerer continues to beat his wife. And while the denotative value of the words would allow an answer of "No" for one who never beat his wife (i.e., you can't quit what you never started) the power of the word "yet" is such that a literal minded reply to the literal meaning of these words is pragmatically unwise.

If you look at the link, above, you get a taste of the way (some) conservatives are willing to use language, "a key mechanism of control." These people have made a study of creating "have you quit beating your wife yet" types of arguments. And too many liberals continue to take the bait, to answer, "Yes!" as fast as possible. Why? Because we want to believe that our interlocutors are legitimate partners in a quest for truth, understanding, wisdom, rather than intellectual thugs using discourse to dominate or "persuade."

Rather than completely hijack Professor Levinson's post here, I invite folks to visit this post at repeal-aumf.org. Comments are welcome there, from both sides of the divide.

Another fantastic link. The cases mentioned in that brief should put to rest the question of whether trying foreign terrorists in civilian venues is recommended or particularly novel. Apparently, it can be done, has been done in the past, and it has worked quite well to achieve government goals.

Have you checked out the other briefs as well? We've got Janet Reno et all arguing that crimnal can be used to try al-Masri but more importantly she is saying that the administration misuses the nomenclatur of war to evade pesky things like the fourth amendment.

Next, we've got a whole host of experts on the law of war who argue basically what we have been saying here for a while: under international law there is no such thing as an illegal enemy combatant. There are civilians and combatants. Civilians should be tried. Did you see they also said that the "war against terrorism" is a mischaracterization? There were wars in Iraq and Afghanistan.

It doesn't make sense to me that foreign enemy combatants get the same rights as citizens either, but a total lack of accountability doesn't make sense either. If we just hold kangaroo courts, it exposes us as hypocrites.

I would like to pose the question directly to Bart, which is under what circumstances does he imagine the 'war on terror' to be over? Something reasonable would be preferable, not just as 'when all the terrorists are gone' or 'when al-qaeda is gone', since none of those situations will give cause to return to the pre-'war on terror' state of affairs. No comments on how things sucked before the war on terror, either - just a realistic description of victory. I think that's a fair question.

The specialists make a good case for the government's right to use lethal force against any properly designated combatant. There's a subtext you don't want to have running when things like this come to light:

In response to the hypotheticals, counsel for [the Government] argued that the Executive has the authority to detain the following individuals until the conclusion of the war on terrorism: "[a] little old lady in Switzerland who writes checks to what she thinks is a charity that helps orphans in Afghanistan but [what] really is a front to finance al-Qaeda activities," a person who teaches English to the son of an al-Qaeda member, and a journalist who knows the location of Osama bin Laden but refuses to disclose it to protect her source."

@mps_chicago: And if we follow the language of war, the administration would have the right to shoot the little old lady at will (no Bart, that is something different than a summary execution. Because than the enemy will have laid down its arms).

I would like to pose the question directly to Bart, which is under what circumstances does he imagine the 'war on terror' to be over?... I think that's a fair question.

I do to. This is an interesting question which needs to be given serious consideration by the Courts given the murky nature of the conflict.

To start, the "war against terror" is a marketing term, not a legal description of the conflict. We are not at war with the concept of terrorism, but rather against discrete identifiable Islamic fascist groups in a conflict similar to the war with the Barbary Pirates.

Therefore, the end of the conflict for the purposes of detaining al Qaeda should be the point where al Qaeda is taken out of operation, not at the point where all terrorism by any party ceases.

@Bart: So you say that it is up to the Courts to decide when the war is over? You know the administration is arguing that the Courts should never question the existance of a war. O'Connor ducked the question in Hamdam by saying that Hamdam was allegedly caught on the battlefield with a gun and that there were still ongoing hospitalities. But I agree that the question will come back to haunt the Supreme Court.

Bart: To start, the "war against terror" is a marketing term, not a legal description of the conflict. We are not at war with the concept of terrorism, but rather against discrete identifiable Islamic fascist groups in a conflict similar to the war with the Barbary Pirates.

Therefore, the end of the conflict for the purposes of detaining al Qaeda should be the point where al Qaeda is taken out of operation, not at the point where all terrorism by any party ceases.

George W. Bush: Our war on terror begins with al Qaeda, but it does not end there. It will not end until every terrorist group of global reach has been found, stopped and defeated.

Bart, I'm sure you can see how some of us might be reluctant to accept your version of the Administration's position on the victory conditions for the war on terror. :)

If the "war on terror" were just a marketing term, would it be appropriate to invoke it in government briefs concerning enemy combatants (or should I say illegal belligerents?)?

And to add another question to pms_chicago's: If the "war on terror" were just a marketing term, would it be appropriate to invoke it in government briefs concerning enemy combatants that are captured on the US soil (as Al Masri and Padilla were), that were not taken in Afghanistan of Iraq?

In response to the hypotheticals, counsel for [the Government] argued that the Executive has the authority to detain the following individuals until the conclusion of the war on terrorism: "[a] little old lady in Switzerland who writes checks to what she thinks is a charity that helps orphans in Afghanistan but [what] really is a front to finance al-Qaeda activities," a person who teaches English to the son of an al-Qaeda member, and a journalist who knows the location of Osama bin Laden but refuses to disclose it to protect her source."

To start, I would love to see the actual transcript of that oral argument to see if this allegation is accurate. If it is, then there is a deputy AG which needs to be fired.

As to the hypotheticals themselves, knowledge is everything.

The charity donor without knowledge would not be and there is no evidence that such a person has ever has been declared an enemy combatant. However, any person who knowingly finances al Qaeda is as much a combatant as a finance clerk in the Army.

Likewise, the unwitting English teacher would not be an enemy combatant any more than the unwitting flight instructors who trained the 9/11 cell members. However, if the teacher knew he was training al Qaeda in English, then he should be as much as a combatant as a military linguistics trainer.

Finally, I don't see how the journalist who knows the location of bin Laden can be a combatant on that basis alone. However, I would definitely be searching for every legal avenue to compel the journalist to disclose that information.

May I be permitted to observe that in this extremely vigorous debate about the merits of various wars and possible actions taken under them, not one person, I believe, has expressed gratitude that George W. Bush will continue to be the Commander-in-Chief for the next 26 months. You may recall that my initial premise is that it speaks very harshly against the US Constitution that we are stuck with an ignorant, incurious, and incompetent (though, I concede, not in a medical sense) president. Would, e.g., supporters of the Iraqi war prefer that we could replace Bush with, say, John McCain? And so on. I sometimes have the feeling that it is more "fun," in a grim sense, to rehash debates about some of the arcana of the war than to address the question whether we have confidence in the present Command-in-Chief and the poltiical system that inflicts him on us until 2009.

If the Taliban is defeated and stops combat operations and if the military does not release Taliban Captures, I imagine any remaining Taliban Captures will file a habeas petition on the ground that the MCA does not provide a mechanism for determining when Captures should be released at the end of a conflict. If the government then attempts to argue that the Taliban captures are part of a larger conflict and must still be held, the Courts are going to be presented with the issue of the scope of the conflict.

Congress generally determines the scope of a conflict through a declaration of war or an AUMF.

The executive has determined the scope of the conflicts when there is no declaration of war and, to my knowledge, have been the only branch to determine when hostilities have ended.

To my knowledge, the courts have never made a determination of the scope or cessation of hostilities. However, under the circumstances of my hypo above, the courts may interpret the AUMF for this conflict to determine the scope of the conflict, but will probably still defer to the executive as to whether hostilities have ceased.

Likewise, Congress may have to create a mechanism for the determination of the cessation of hostilities for our brave new world of non governmental wars.

May I be permitted to observe that in this extremely vigorous debate about the merits of various wars and possible actions taken under them, not one person, I believe, has expressed gratitude that George W. Bush will continue to be the Commander-in-Chief for the next 26 months...Would, e.g., supporters of the Iraqi war prefer that we could replace Bush with, say, John McCain?

Professor, given that the alternative under your hypothetical constitutional revision allowing votes of confidence would be a Democrat calling for surrender in Iraq, I am thrilled that the alternative is keeping George Bush in office for another two years.

I never bothered answering this jab before because, as I posted before, a GOP congress never would have held a vote of no confidence bringing on elections in 2006 if they could have delayed elections until the next candidate would run in 2008. The practical result of a parliamentary system would have been a continuation of GOP majority rule in the Congress.

We'll never know whether Congress (either the current on incoming one) would cast a 2/3 "no confidence" vote (under a system that would allow the congressional caucus of the president's own party to pick the successor), since it's obviously not our present system. Ironically, I can imagine that many Republicans in a secret ballot would be delighted to trade President Bush for President McCain (or, for that matter, President George H. W. Bush) and that it might be Democrats who would pull back, figuring that their chances in 2008 are far better with two more years of George. W. Bush than with a competent Republcan President who would have the approval of far more Americans than Bush does or is likely to have anytime before the next election. Note, in this regard, that the Tories' decision to get rid of Margaret Thatcher required no acquiescence by Labor, which might well have preferred to run against her than against Major (to whom, of course, they lost). So perhaps I should amend my proposal to allow dumping a president whenever 2/3 of his/her own party caucus deems it time for him/her to go, in order to prevent the kind of perverse strategic voting by the opposition party that would keep in office an obvious incompetent, regardless of the costs to the country.

I sometimes have the feeling that it is more "fun," in a grim sense, to rehash debates about some of the arcana of the war than to address the question whether we have confidence in the present Command-in-Chief and the poltiical system that inflicts him on us until 2009.

For what it's worth, I'd vote "no confidence" were I in a position to do so, although I am a supporter in theory of the "war on terror" (but not the invasion of Iraq, which I find an inexcusable diversion).

I continue to chew on your idea of changing the form of the government in order to control its content, and your (slightly rephrased) question: Has Bush's incompetence or Cheney's dementia triggered the need to rewrite the constitution?

Anne makes a good point when she suggests that even under the proposed fix, Bush would likely receive a pass, although (as you suggest) that might not occur if there was the guarantee that someone else within the same party would obtain the position.

The belief that nothing will change even after a leader is deposed is a difficult one to remove. Much social theory (i.e. Italian and American elitists) has pointed out the tendency of revolution to simply circulate elites, rather than constitute a new order. To some degree, leaders are interchangeable, because they are only points within a larger social network that is more difficult to replace whole cloth.

Therefore, a method of removing and replacing a figurehead will only be as effective (in achieving specific goals) as it is able to change the relations between political actors within the targeted institutions. If, as Robert and others have argued within our "rehashed" debates, the fount of incompetence and arrogance lies in the policy think tanks upon which the administration relies, how will a constitutional change allowing a vote of no confidence address the tendency of fellow party members to rely upon common sources of policy- and decision-making?

It seems that if you would truly like to effect the kinds of changes that you are proposing (preventing a new war or the like), it would be necessary to throw out the bath water with the baby.

(Your most recent addition of requiring 2/3 of the President's own party caucus begins to address these concerns and is more compelling.)

Personally I would think that a open vote should be required. Isn't the whole point of votes of confidence that every represenative should be able to explain to its electorate why he is still supporting the president. A secret vote would only be a way to getting what you want: getting rid of Bush. A secret vote would have it's own dynamics with some which you just wrote down. It doesn't seem to be a way to actually make the system better.

So perhaps I should amend my proposal to allow dumping a president whenever 2/3 of his/her own party caucus deems it time for him/her to go, in order to prevent the kind of perverse strategic voting by the opposition party that would keep in office an obvious incompetent, regardless of the costs to the country.

This seems to undermine the argument you made in the post below:

"There is nothing at all "undemocratic" about 2/3 of the collective Congress (or 2/3 or each House, if one prefers that), having the power to displace a president in whom they have lost confidence. The collective Congress, for all of the acknowledged problems associated with partisan gerrymandering in the House and the over-representation of small states in the Senate, is far more democratic than a single president who, recurrently, does not get even a majority of the national vote (which George W. Bush did not in 2000, but did, of course, in 2004). The 2/3 supermajority would, in all but truly exceptional circumstances that in fact have never once existed in our history, assure that any successful vote would have to be bi-partisan."

@prof Levinson: and by the way saying that we are more interested in discussing the war than changing the constitution. Though this might be true, you might recall that to make your point you started talking about a possible war with Iran.

But back to the substance: the point why I stopped answering your question is because we were discussing the constitution, and all you want to get is a sollution that will get rid of this president while leaving the rest of the system intact.

You are now arguing for- a vote of no confidence- with a two thirds majority- by the caucus of the party of the president (even when they are in the minority?!)- in secret- while the replacement must be from the same party as the president was

Your system was to difficult to begin with. The beauty of the no confidence rule in Europe is that it is simple: the administration must have the trust of a simple majority. Confidence is assumed until a majority agrees that there's none.

A system with a vote of non confidence can only work if you have a prime minister and a whole cabinet that depend on that trust each and every day.

I think the Iraq War itself goes far to dispell certain "structuralist" or even "elitist" political theories that basically dismiss the relevance of actual office-holders in favor of "deep" social forces or interests of entrenched elites. It seems close to impossible to offer a structuralist account of our decision to invade Iraq, and I'm not sure that even a broadly based elitist account works. Does a single person on this list believe that Al Gore would have invaded Iraq, even if it is extremely likely that he would indeed have invaded Afghanistan had Sept. 11 taken place?

I think it is important to be reminded about the potential fallacy of over-emphasizing individual agency, but I think it is equally important to be reminded, on accasion, that the identity of office-holders matters.

On another matter, I think it's probably correct that any vote of no confidence should be non-secret, given the gravity of the consequence. I also agree with Anne that parliamentary systems don't have to go through contortions. But any modification of our system would require contortions, and the question remains whether we're satisfied enough with the status quo (and the guaranteed occupany both of the White House in general and the "Situation Room" in particular) to preclude further discussion of how best to respond to the "incompent" president.

Does a single person on this list believe that Al Gore would have invaded Iraq, even if it is extremely likely that he would indeed have invaded Afghanistan had Sept. 11 taken place?

I would guess that no one would believe that, although I would suspect at least some of the variation between the positions is attributable to differences between the agendas of the two parties they represent.

The $64,000 question is: would McCain (or any other Republican appointee) have a substantially different policy towards Iran if he were tapped by the GOP right now to replace Bush? I note that McCain's rhetoric vis-a-vis military intervention ("keep it on the table," "last resort") mirrors the Administration's public speeches, even if it differs from the darkness reflected in Seymour Hersh's pieces.

Robert, without looking it up, can you even define a non-sequitor [sic]?

"Bart" may have difficulty looking it up; to do so, it helps to know how to spell it. This gem brought to you by the guy that claimed to have 'schooled' me a while back. ROFL. Strangely enough, were "Bart" simply conversantg with the funnies page in the newspaper, he may not have this difficulty (albeit the Colorado Springs rag may not carry Wiley Miller's fine strip).